Nance v. Waldrop
| Decision Date | 01 March 1972 |
| Docket Number | No. 19377,19377 |
| Citation | 187 S.E.2d 226,258 S.C. 69 |
| Court | South Carolina Supreme Court |
| Parties | Jack H. NANCE et al., Respondents, v. Wallace Hesby WALDROP, Appellant. |
Eddie R. Harbin, Greenville, for appellant.
C. Victor Pyle, Jr., of Pyle & Pyle, Greenville, for respondents.
The defendant, Wallace Hesby Waldrop, is fee simple owner of a lot located at the intersection of West Lee Road and Wildwood Road in Greenville County. Plaintiff Carolyn E. Station is the owner of an adjoining lot. The other plaintiffs own property in the residential subdivisions known as Woodland Hills and Wade Hampton Gardens. These subdivisions surround the lots owned by plaintiff Staton and the defendant.
All parties to this action have as a common grantor in their chains of title, one Robert J. Edwards. In 1938, Edwards, as committee and trustee for James M. Edwards, instituted an action in the Court of Common Pleas for Greenville County. He sought approval of the sale of a portion of a 500-acre tract of land. The court's decree provided that all deeds out of Robert J. Edwards as Committee, etc., should contain the following:
'It is understood this conveyance is made subject to the following restrictions which are expressly made a part of the consideration thereof:
'(1) Said property shall be used solely for residential purposes. . . .
'(2) No house shall be erected thereon costing less than Four Thousand Five Hundred ($4,500.00) Dollars.'
As a result, the defendant's use of his property is subject to this restriction.
Early in the summer of 1969, the defendant's son, Robert W. Waldrop, began to develop the defendant's lot as a trailer park. This suit was filed in the Court of Common Pleas for Greenville County on August 21, 1969. After commencement of the action, Robert Waldrop placed one trailer on the defendant's lot and occupied it as his residence. The plaintiffs, individually and on behalf of all others similarly situated, sought to enjoin the defendant from using his property as a trailer park or otherwise in contravention of the restrictive covenant. The lower court granted the injunction. The defendant has appealed.
The case was tried before the Master in Equity. At the hearing, Robert Waldrop appeared, representing his father under a power of attorney. He testified that his plan to use the defendant's lot as a trailer park had been abandoned. He did, however, plan to continue to occupy his trailer and to allow his sister to place another trailer on the lot for use as her residence.
Upon this appeal the defendant submits four questions for our determination. Under the view we take we need answer only one basic inquiry: May the defendant move a mobile home, trailer-type residential unit, onto the lot and occupy it as a residence without violating the restrictions quoted above? We agree with the Master and the trial judge that the restriction has been violated.
In construing covenants such as the one involved here, we attempt to give effect to the intent of the parties. It is proper to consider the overall plan. Such intent should, as nearly as possible, be gleaned from the instrument itself. However, the circumstances surrounding the origin of covenants should also be considered. Cheves v. City Council of Charleston, 140 S.C. 423, 138 S.E. 867 (1927).
What, then, were the circumstances in 1938 when the restriction with which we are concerned was born? One circumstance was the fact that the trailer, or mobile home, was virtually unknown. 'The mobile home is a novel development of the mid-twentieth century.' Swigart v. Richards, 178 N.E.2d 109 (Court of Common Pleas of Ohio, Licking County, 1961). It can be said with near certainty that the question of whether trailers should be permitted on this property was not even considered by the parties or the court in the 1938 litigation out of which the restriction was whelped. Does this mean that the restriction in defendant's deed should not be interpreted so as to prohibit the placing of a house trailer on defendant's lot? We think not.
The area where plaintiffs' and defendant's property is located has developed as a residential section. The houses that have been constructed therein are permanent in nature and rather substantial in size. Such was the situation when the trailer was placed on defendant's lot.
The use in the restrictions of the words 'residential', 'house' and 'erected' indicate an intent on the part of the creator of the covenant that structures in the nature of coventional homes be built.
Similar situations have arisen in other jurisdictions. In Pagel v. Gisi, 132 Colo. 181, 286 P.2d 636 (1955), an order that the defendant should move his house trailer was affirmed. There the court was enforcing a restriction that the property be used only for dwelling houses costing not less than $4,000. The court said:
'When the defendant moved his house trailer on the premises he placed thereon not a permanent home but . . . 'a portable unit designed to be hauled from place to place by an automobile or truck and would detract from and reduce the value of any residential area where it is permitted to be located. It belongs in a trailer court where such ambulatory units are permitted."
Pagel was cited in Swigart v. Richards, Supra. There the restrictive covenant was of pre-1946 vintage and read:
'No building shall be erected or maintained upon any lot except one residence designed and used for occupation by a single family and not more than one and one-half stories in height . . .'
'Fundamentally,' the court said, 'the question is what did the parties intend by the language used.' The parties to the action conceded that state law as to how such language applied to mobile homes was non-existent. The court noted that:
'The mobile home mode of living has created many social and economic problems resulting in a great amount of regulatory legislation over the country, conflicting and confusing court decisions, some perhaps due in some degree to unfamiliar knowledge of factors involved and lack of guiding precedent.
'. . . Regulations relating to the mobile home as a dwelling with the progress of the coming years will not doubt require re-valuation of existing regulatory laws, zoning, and taxation measure with respect to the public welfare. . . .'
The court concluded that an injunction prohibiting the placing of a mobile home on the defendant's lot should be granted.
The Master's report contains the following observation:
The evidence warrants the conclusion that a general building scheme or plan of development founded on these restrictions has evolved in the area here in question. The plaintiffs in this action and their predecessors in title have obviously relied upon the restrictions in buying and developing the property. The circumstances...
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